November 16, 2016

In this appeal, the Court considers the proper scope of the plain-view
exception to the warrant requirement under Article I, Paragraph 7 of the New
Jersey Constitution and whether inadvertent discovery of contraband or evidence
of a crime should remain a predicate for a plain-view seizure.

The constitutional question in this case arises out of defendant
Xiomara Gonzales’s appeal from the denial of her motion to suppress evidence
seized by police from the vehicle she was driving on February 7, 2009. Pursuant
to their ongoing investigation of a drug-distribution scheme, the police
learned that Gonzales and a codefendant were going to retrieve a package that
day that the Prosecutor’s Office suspected would contain a large quantity of
heroin. After Gonzales and the codefendant made two stops in separate cars, the
codefendant placed two blue plastic bags on Gonzales’s back seat, and Gonzales
headed toward the Garden State Parkway.

Two officers followed Gonzales. They saw her speed, turn left on a red
light, and pass through a toll on the Garden State Parkway without paying. The
officers pulled Gonzales over to the shoulder of the Parkway.

As Officer Perez approached Gonzales’s car, he saw that items had
spilled from the blue bags onto the rear floorboard. He “immediately
identified” the spilled items as “bricks of heroin.” Gonzales was arrested and
the bags sealed. At a secure site, it was determined that the bags contained
270 bricks of heroin.

Gonzales was
charged with first-degree distribution of more than five ounces of heroin,
first-degree possession of heroin with the intent to distribute, third-degree
possession of heroin, and second-degree conspiracy to commit racketeering.
Gonzales moved to suppress the evidence.

The trial court denied the motion to suppress, determining that the
plain-view exception to the warrant requirement justified the warrantless
seizure of the heroin because Officer Perez (1) was lawfully present beside
Gonzales’s car; (2) discovered the heroin “inadvertently” due to the spillage;
and (3) had specialized training and experience in narcotics detection that
made the incriminating nature of the packaged heroin “immediately apparent” to
him. The trial court therefore upheld the constitutionality of the search.

The Appellate Division reversed. Adhering to the plain-view test
established in State v. Bruzzese, 94 N.J. 210, 236–38 (1983), cert. denied, 465
U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984), the appellate panel
concluded that, because the motor-vehicle stop was a pretext to enable police
to seize drugs they knew to be present in Gonzales’s car, Officer Perez’s discovery
of the heroin did not meet the inadvertence prong of the plain-view exception.
In reaching this conclusion, the panel did not address the fact that, since
Bruzzese, the United States Supreme Court has expressly held that the
“inadvertent” discovery of incriminating evidence is not a prerequisite for
plain-view seizure. The panel also found that exigent circumstances did not
justify the search because the police had time to obtain a warrant while
pursuing Gonzales’s car.

HELD: The Court now excises the inadvertence requirement from
the plain-view doctrine. Because it is setting forth a new rule of law, the
Court will apply the reformulated plain-view doctrine prospectively.
Nevertheless, the Court holds that the trial court’s finding of inadvertence is
supported by credible evidence in the record. The Court therefore reverses the
judgment of the Appellate Division and reinstates the trial court’s denial of
the motion to suppress. 2

1. The Court notes
that both the New Jersey and Federal Constitutions protect against
“unreasonable searches and seizures” and forbid the issuance of a warrant
absent “probable cause.” N.J. Const. art. I, ¶ 7; see U.S. Const. amend. IV.
Warrantless searches are prohibited unless an exception to the warrant
requirement applies such as the plain-view doctrine, which authorizes an
officer to seize evidence or contraband that is in plain view.

2. The United States Supreme Court established the
factual predicates necessary to satisfy the plain-view exception in Coolidge v.
New Hampshire, 403 U.S. 443, 465-72, 91 S. Ct. 2022, 2037-41, 29 L. Ed. 2d 695,
582-87 (1984). In that decision, a plurality of the Court established three
requirements for the exception: (1) The officer must be lawfully in the viewing
area when making the observation; (2) the evidence must be discovered
inadvertently; and (3) the incriminating nature of the evidence to be seized
must be immediately apparent to the officer. The purpose of the inadvertence
requirement was to ensure that police obtain warrants when they have advance
knowledge of incriminating evidence or contraband subject to seizure. The
requirement was never adopted by a majority of the Court.

3. In Horton v. California, 496 U.S. 128, 110 S. Ct.
2301, 110 L. Ed. 2d 112 (1990), the United States Supreme Court interred the
inadvertence requirement as a predicate for a plain-view seizure of evidence.
The majority of the Court found that other aspects of search-and-seizure
jurisprudence protect against the concerns that the inadvertence requirement
aimed to address. The Court also rejected the inadvertence requirement because
it necessitated a subjective inquiry into the officer’s state of mind. The
Court thus explicitly stated that inadvertence was not a necessary predicate to
a plain-view seizure, a position that a majority of states have since adopted.

4. Before Horton was decided, this Court adopted the
Coolidge plurality’s formulation of plain view in Bruzzese. Even in espousing
the three-prong plain-view standard, however, the Court expressed the view that
the standard of objective reasonableness governs the validity of a search or
seizure. This Court continued to apply the three-part test in the post-Horton
era, but without occasion to assess whether a plain-view seizure would pass
muster in the absence of inadvertence.

5. The Court stresses the preference for objective
standards over subjective inquiries in both federal and New Jersey search-and-seizure
jurisprudence.

6. The Court now excises the inadvertence requirement
from the plain-view doctrine. The Court finds subjective inquiry into an
officer’s motives to be at odds with the standard of objective reasonableness
that applies to a police officer’s conduct under the New Jersey Constitution.
The Court notes that the constitutional limiting principle of the plain-view
doctrine is that the officer must lawfully be in the area where he observed and
seized the item, and that it must be immediately apparent that the seized item
is evidence of a crime. Because the Court sets forth a new rule of law, the
Court will apply the reformulated plain-view doctrine prospectively.

7. Thus, the Court applies the now-defunct three-part
plain-view test to the facts of this case. The Court concludes that all three
parts of the test were met. The motor-vehicle violations gave the officers a
reasonable and articulable suspicion to stop Gonzales’s car, and Officer
Perez’s training made the nature of the spilled items “immediately apparent.”
Finally, the trial court’s finding that the discovery was inadvertent was
supported by sufficient credible evidence in the record, and the appellate
panel should have deferred to that finding.

8. The Court observes that the appellate panel also
erred in finding that the police lacked exigent circumstances to act, stressing
that the officers were not required to watch helplessly as Gonzales drove away
with what the authorities reasonably believed was a cache of drugs. Here,
again, the plain-view observation of the spilled heroin provided the basis for
the seizure of the contraband. (pp 35-36)

9. The Court provides guidance as to the limits of the
plain-view exception and the continuing need to obtain a warrant when there is
sufficient time to do so.

The judgment of the Appellate Division is REVERSED and
the trial court’s denial of the motion to suppress is REINSTATED. The
matter is REMANDED to the Appellate Division for consideration of the
remaining sentencing issue.

November 10, 2016

Veteran’s
Day - Local military veterans will be holding services and other events this
week to commemorate Veterans Day. The holiday, originally called Armistice Day,
was created to honor veterans of World War I. The armistice effectively ending
the war was signed on Nov. 11, 1918. In 1954, Congress passed legislation
setting Nov. 11 as a day to honor American veterans of all wars.

While in college I wrote my senior class project on my
grandfather Albert Louis Vercammen who fought in WWI against the German army
with the Belgian Army. I wrote how he single handedly defeated the Germans to
make the world safe for democracy.

Decades later, the Red Chinese stormed into North Korea in
the Korean War and threatened Communism throughout Asia. The Army summoned my
dad, Albert P. Vercammen, to go over and fight the invaders. He was on the
Battleship New Jersey crossing the Pacific when the North Koreans and Chinese
heard about the fierce Vercammen fighting spirit. The North Koreans started to
retreat and wanted to surrender. The cowardly United Nations let them call it a
truce. Again, the world was safe for democracy.

While in Korea, Al Vercammen was promoted to Sergeant. I
recall him saying Korea was the coldest place in the world. Also, unlike the TV
show MASH that had hot nurses, the ones in Korea were all ugly. The black and
white photos taken in Korea my Dad has show barren hills near their Spartan
tents. It looked cold. I am glad I did not have to go over there. So as
Americans, we thank our Dads and other vets that got the call to duty [draft]
and helped turn the tide against the Communists.

My father in law John Bachenski served in WWII in the Army
Air Corp, the forerunner of the Air Force. He help start the sonar radar
program for the Army. He successfully helped defend the air base at Boca Raton,
Florida from the invading Italian navy. He is a long time member of the
American Legion.

2 Veterans and Sons of Veterans should Join the American
Legion

To honor
my dad and other veterans I recently joined the Sons of American Legion. I am
now am an Member, Sons of American Legion, Edison Father & Son Post 435,
which is located on 43 Oakland Ave, Edison, NJ
08817 near Plainfield Ave and Wick Plaza.

The American Legion was chartered
by Congress in 1919 as an organization for wartime veterans. Membership is open
only to men and women who served active duty in the US Armed Forces during
specific periods designated as “war time” by the US Congress, and who have
received an honorable discharge, or are still serving honorably. Eligible veterans
would be able to provide a Form DD214 (or similar) to verify their eligibility.
If you don’t meet these requirements, you can still support the USA and Posts
of the American Legion.

It’s possible that you may be able
to join one of the other organizations in the “Legion Family.” The Sons of The
American Legion (SAL) is comprised of male descendants, adopted sons and stepsons
of American Legion members. (There are no age limitations.) Many posts have an
active SAL program and you can contact one near you to learn more. (Visit www.legion.org/sons for more information.)

Their sister organization is the American
Legion Auxiliary. Eligibility is open to mothers, wives, daughters, sisters, granddaughters,
great grand daughters, or grandmothers of members of The American Legion, or of
deceased veterans who served in the United States Armed Forces during the
listed war eras.

The American Legion was chartered and incorporated by Congress in 1919 as a
patriotic veterans organization devoted to mutual helpfulness. It is the
nation’s largest wartime veterans service organization, committed to mentoring
youth and sponsorship of wholesome programs in our communities, advocating
patriotism and honor, promoting strong national security, and continued
devotion to our fellow service members and veterans.

Hundreds of local American Legion
programs and activities strengthen the nation one community at a time. American
Legion Baseball is one of the nation’s most successful amateur athletic
programs, educating young people about the importance of sportsmanship,
citizenship and fitness. The Operation Comfort Warriors program supports
recovering wounded warriors and their families, providing them with
"comfort items" and the kind of support that makes a hospital feel a
little bit more like home. The Legion also raises millions of dollars in
donations at the local, state and national levels to help veterans and their
families during times of need and to provide college scholarship opportunities.

To contact the American Legion, Edison Father & Son Post 435 Call (732)
985-9768. Hall Rental also available for events

October 23, 2016

Third
Party did not have authority to consent to search of bedroom State v.
Cushing226 NJ 187 (2016)

The record contains ample evidence to support the
Appellate Division’s conclusion that Betty Cushing did not have actual
authority to consent to the search of defendant’s room.

Betty could not have conferred through any power of
attorney an authority that she did not possess herself.

In addition, it was not objectively reasonable for
Officer Ziarnowski to rely on an apparent authority by Lisa Mylroie as the
basis for valid third-party consent to his initial search of defendant’s
bedroom.

Police stop of car for
high beam which did not affect traffic not proper and evidence suppressed State v. Scriven (226 NJ 20 (2016)

Decided July 20, 2016

ALBIN, J., writing for
a unanimous Court.

In
this appeal, the Court considers the circumstances under which the high-beam
statute, N.J.S.A. 39:3-60, justifies a police stop of a vehicle.

On November 3, 2013,
at approximately 3:00 a.m., Essex County Sheriff’s Officer David Cohen and his
partner, Officer Eric Overheely, observed an unoccupied vehicle “with a
fictitious temp tag” located on the left side of Adams Street in the City of
Newark. Adams is a one-way street, which runs parallel to Independence Park and
forms a “T” intersection with New York Avenue. Traffic flowing on New York
Avenue toward the park must turn left onto Adams Street. Officer Cohen
double-parked his patrol car immediately behind the unoccupied vehicle to
investigate. He kept his headlights on but did not activate his overhead lights.
After determining that the vehicle was unregistered, he called for a tow truck.

While
waiting on foot for the tow truck to arrive, Officer Cohen observed a vehicle
on New York Avenue approaching from about a quarter-mile away. The vehicle was
traveling with its high beams on at a normal speed in this well-lit residential
area. The vehicle obeyed the stop sign at the intersection of New York Avenue
and Adams Street. Using the strobe light attachment on his flashlight, Officer
Cohen signaled to the driver to pull over, and the driver did so, turning left
onto Adams street. Officer Cohen intended to educate the driver on the proper
use of high beams. In the officer’s experience, stolen cars are often driven
with high beams, and the blinding light takes away his tactical advantage to
see inside a car and know whether guns are pointed at him.

As
Officer Cohen approached the driver’s side of the vehicle, he did not give the
driver a warning to turn off her high beams, but instead instructed her to
produce her license, registration, and insurance cards. With the driver’s side
window down, Officer Cohen could smell burnt marijuana. He then walked around
the vehicle, asked defendant, the front passenger, to roll down the window, and
detected a stronger odor of burnt marijuana. Officer Cohen asked defendant and
the rear passenger whether they had any “CDS” (controlled dangerous substance)
on them, and both replied, “No.” While engaged in this exchange, Officer Cohen
noticed inside the vehicle a hollowed-out cigar, which, from his experience and
training, he knew was used as a receptacle for marijuana. Based on this
observation, Officer Cohen told defendant to step out of the car. In response,
defendant indicated that he had a gun under his jacket. The officer ordered
defendant to keep his hands up while he retrieved the weapon. Defendant was
placed under arrest, and the driver was later issued a ticket for a violation
of the high-beam statute.

Defendant was charged with unlawful
possession of a .40 caliber handgun, receiving stolen property (the handgun),
possession of hollow-nose bullets, and possession of a large-capacity magazine.
Defendant filed a motion to suppress the handgun, the bullets, and the magazine
on the ground that the police did not have a constitutionally permissible basis
for stopping the car in which he was a passenger.

The court granted the motion because
the automobile stop violated the Fourth Amendment and Article I, Paragraph 7 of
the New Jersey Constitution. The court observed that the high-beam statute
presupposes that the offending driver’s high beams are on when his vehicle
approaches an oncoming vehicle. Here, Officer Cohen testified without
equivocation that he did not observe any other vehicle traveling in the
opposite direction toward defendant’s vehicle. Therefore, the court reasoned
that, in the absence of a violation of the high-beam statute, Officer Cohen did
not have a reasonable and articulable suspicion to justify a motor-vehicle
stop. The court also concluded that the stop could not be justified based on
the community-caretaking exception to the warrant requirement because the
operation of the vehicle did not suggest that the driver was impaired or in
need of police assistance.

The Appellate Division granted the
State’s motion for leave to appeal and, in an unpublished opinion, affirmed the
trial court’s suppression order. Like the trial court, the appellate panel
found that Officer Cohen did not have an objectively reasonable basis to
believe that the operator of the subject car violated the high-beam statute
because there were no oncoming vehicles approaching it. In light of the
unambiguous language of the statute, the panel rejected the argument that
Officer Cohen made a good faith mistake of law that allowed for the denial of
the suppression motion. The panel also asserted that the community-caretaking
doctrine did not apply because the record contains no proof that operation of
the vehicle otherwise presented a traffic safety hazard or endangered the
safety and welfare of defendant, the officer, or others on the road at the
time. The Court granted the State’s motion for leave to appeal. 223 N.J. 551
(2015).

HELD: The trial court
and Appellate Division properly concluded that the motor-vehicle stop violated
the Federal and State Constitutions. The language of the high-beam statute,
N.J.S.A. 39:3-60, is unambiguous; drivers are required to dim their high beams
only when approaching an oncoming vehicle. Neither a car parked on a
perpendicular street nor an on-foot police officer count as an oncoming
vehicle. The judgment of the Appellate Division upholding the trial court’s
suppression of the evidence is affirmed.

1. The Fourth Amendment of the United
States Constitution and Article I, Paragraph 7 of the New Jersey Constitution
provide that the right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be
violated. A motor-vehicle stop by the police constitutes a seizure of persons
within the meaning of those provisions. Under both provisions, a police officer
must have a reasonable and articulable suspicion that the driver of a vehicle,
or its occupants, is committing a motor-vehicle violation or a criminal or
disorderly persons offense to justify a stop. The heart of this constitutional
analysis is whether the motor-vehicle stop was unreasonable, recognizing that
raw, inchoate suspicion grounded in speculation cannot be the basis for a valid
stop. (pp. 12-13).

2. The State argues that the driver of
the car in which defendant was traveling was violating the high-beam statute,
thus justifying the motor-vehicle stop. The language of the high-beam statute
requires a driver to dim his or her vehicle’s high beams when approaching an
oncoming vehicle. The plain language of a statute is the best indicator of its
meaning. The word “oncoming” is consistently defined as “coming nearer,”
“nearing,” “approaching,” and “moving forward upon one.” An “oncoming vehicle”
and “oncoming driver” cannot mean an unoccupied vehicle, parked on a
perpendicular roadway, whose driver and passenger are standing in the street,
even if the unoccupied vehicle’s motor is running and its headlights are on.
Accordingly, the driver of the subject car was not in violation of the
high-beam statute. The statute is unambiguous in its language and meaning to
both the public and the police. Officer Cohen, who was on foot waiting for a tow
truck, was not an “oncoming vehicle” or “oncoming driver” to the car
approaching him from New York Avenue. Further, because Officer Cohen did not
have a reasonable and articulable suspicion to believe that the subject car was
operating in violation of the statute, the Court need not address the issue
dealt with in Heien v. North Carolina, __ U.S. __, 135 S. Ct. 530, 190 L. Ed.
2d 475 (2014). In Heien, the United States Supreme Court held that, under the
Fourth Amendment, the requisite suspicion necessary for the police to make a
stop for a motor-vehicle violation may be based on an objectively reasonable
mistake of law. Here, however, because Officer Cohen’s mistake of law was not
objectively reasonable, Heien is inapplicable. (pp. 13-19)

3. The State alternatively argues that
Officer Cohen had a justifiable basis for stopping the subject car under the
community-caretaking exception to the warrant requirement of the Fourth
Amendment and Article I, Paragraph 7 of our State Constitution. The community-caretaking
doctrine recognizes that police officers provide a wide range of social
services outside of their traditional law enforcement and criminal
investigatory roles. Police officers who have an objectively reasonable basis
to believe that a driver may be impaired or suffering a medical emergency may
stop the vehicle for the purpose of making a welfare check and rendering aid,
if necessary. The police do not have to wait until harm is caused to the driver
or a pedestrian or other motorist before acting. The evidence here – according
to the trial court – did not suggest that the driver of the car was impaired or
that the vehicle had a problem.

A police officer conducting an
investigation on the street can ask and even instruct a driver to dim high
beams if the brightness of the lights is obstructing or impairing the officer’s
ability to perform certain tasks. Here, however, Officer Cohen did not signal
to the driver to dim her high beams because they were interfering with his
mission, which was waiting for a tow truck to take away an unregistered
vehicle. Rather, he effectuated a motor-vehicle stop under the objectively
unreasonable belief that the driver was in violation of the high-beam statute.
The motor-vehicle stop was not justified. The subsequent seizure of the
handgun, hollow-nose bullets, and large-capacity magazine were the fruits of a
violation of the Fourth Amendment and its state constitutional counterpart. The
court properly suppressed the evidence.